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Saturday, June 9, 2012

Goldman Director Gupta Likely To Testify

A federal white-collar defendant testifying in his own defense is about as rare as a lunar eclipse. We're about to see one next week.

The attorney for Goldman Sachs director Rajat Gupta told Manhattan federal district judge Jed Rakoff yesterday that it is "highly likely" that Gupta will take the stand.  This is very rare.  Most defendants do not testify in their own defense.  Chalk one up for Gupta in either the guts category...or the hubris category.

Sometimes a defendant is his own best witness.  At the very least, a defendant who testifies -- and gets convicted anyway -- can avoid second guessing his or her own fear of testifying (which in reality is the fear of the hostile government cross-examination).  Such a defendant will go to federal prison but at least not be saying "I could've, I should've, and I didn't."  The ability to avoid self-doubt means something, given the government's success in prosecuting people

The standard advice to people who get investigated or prosecuted is to say nothing.  At least, not until it counts, before a judge and jury.  This way, your comments to investigators in interviews or "proffer" sessions -- which according to FBI policy are not recorded -- cannot be taken out of context, misinterpreted or misreported.  Just ask Martha Stewart.  (Note: You read this right.  This means a defendant has to assume the competence, accuracy, credibility and honesty of the government agent taking the notes of your statements.)

A defendant who testifies also gets to define himself or herself.  A defendant who is silent gets "defined," for better or (much more likely) for worse, by the witnesses chosen to take the stand by the government.  Some government witnesses are often not very credible characters.  You can imagine exactly how bad the government believes to be the people it chooses not to use as trial witnesses.

On the other hand, defendants who testify may get punished. A defendant who is found by the trial judge to have been less than credible, or to have lied on the stand, may receive two extra "levels" on the federal sentencing guidelines matrix.  More levels means more time.  The judge who found a defendant to have lied on the stand has the power to hand down a stiffer sentence to a convicted defendant.  These are all things to consider.

Eric Dixon is a New York investigative lawyer, political consultant, strategic analyst and radio talk show host. 


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